PA ASIRU AKANJI JAGUN & ORS v. MOGAJI BAKARE ADEBISI ADETUMBI & ORS
(2019)LCN/12552(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/AK/124M/2016(R)
RATIO
COURT AND PROCEDURE: EXERCISE OF JUDICIAL DISCRETION
“The grant or refusal of this type of application is dictated by the Judge’s exercise of discretion, upon a judicial and judicious consideration of the facts, materials placed before the Court and the circumstances of each case. The affidavit evidence alleges fraud and misrepresentation as the basis of the judgment sought to be appealed. In Stanbic IBTC Bank V. LGC Ltd (2017) 18 NWLR (Pt. 1598) 431 the apex Court, per Galinje, JSC stated thus: ‘Now, a grant or refusal of this application is purely within the discretionary power of this Court. The law is settled that the discretion of this Court must be exercised not only judicially but also judiciously on sufficient materials. See Udensi V. Odusote.'” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: LEAVE OF COURT
“The applicants by their affidavit have shown that they have an interest in the land in dispute and that they were not parties to the previous matter leading to this application. Therefore, could seek leave to appeal as interested parties. It is only a party who can show that he has an interest in a matter and whose interest has been affected by the decision as the instant case, that can seek leave to appeal as an interested party. An applicant seeking leave of Court to appeal as an interested party must make detailed depositions in his affidavit in support of the application to show his interest in the matter. See WAZIRI V. GUMEL (2012) 9 NWLR (PT. 1304) 185.” RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. PA ASIRU AKANJI JAGUN
2. MUKAILA ADEGBOYE
3. SIKIRU AKANBI
(For themselves and on behalf of Jagun Ajayi Saraki family of Osogbo)
-APPLICANTS/PARTIES
INTERESTED Appellant(s)
AND
1. MOGAJI BAKARE ADEBISI ADETUMBI
2. MR. WAHEED ADETUMBI
3. MADAM MULIKATU (nee ADETUMBl)
(For themselves and on behalf of the entire members of Adetumbi family, Osogbo)
4. ALHAJI SAKA ADEOTI OKUNMOYINBO
5. MR. RASAKI ADEBAYO OKUNMOYINBO
6. MR. MUFUTAU OKUNMOYINBO
7. MR. FATAl YUSUFF OSUNLEPO
8. MR. JIMOH OSUNLEPO
(For themselves and on behalf of the entire members of the Osunlepo family Osogbo)
-PLAINTIFFS/1ST SET OF RESPONDENTS
AND
1. FEDERAL MINISTRY OF WORKS, HOUSING AND URBAN DEVELOPMENT
2. ATTORNEY GENERAL OF FEDERATION AND MINISTRY OF JUSTICE
3. MR. OLAPOSI JULIUS
4. MR. SUNDAY ADEBAYO
5. MRS. BUKOLA ABIONA
6. MR. DADA
7. MR. AND MRS. J. A. AYODELE
8. MR. ADEBAYO
PLAINTIFFS/2ND SET OF RESPONDENTS Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling):
The Applicant by motion on Notice dated and filed on 16/6/16 prays for the following reliefs:
(i) An order of this Honorable Court granting leave to the Applicants to apply for an order extending the time within which they may apply for leave to appeal the final judgement of High Court of Justice, Osogbo delivered by Hon. Justice S. O. Falola on 6th day of June 2014, as parties interested.
(ii) An order of this Honorable Court extending the time within which the Applicants may apply for leave to appeal the final judgement of High Court of Justice, Osogbo delivered by Hon. Justice S. O. Falola on 6th day of June 2014, as parties interested.
(iii) An order of this Honorable Court granting the Applicants leave to appeal against the final judgment of High Court of Justice, Osogbo delivered by Hon. Justice S. O. Falola on 6th day of June 2014, as parties interested.
(iv) An order of this Honorable Court restraining the Respondents from further execution of the final judgement of High Court of Justice, Osogbo delivered in this suit by Hon. Justice S. O. Falola on 6th day of June 2014 or taking any step against the properties of the Applicants or those of their agents, privies and servants located on the land in dispute by demolishing any structure thereon, pending the determination of the appeal to be lodged by the Applicants.
AND for such further order or other orders as this honorable Court may deem fit to make in the circumstances.
The application is supported by an affidavit of 37 paragraphs deposed to by one Mukaila Adegboye and 5 Exhibits A – E. A further Affidavit was filed on 11/7/16, with some annextures.
The Respondents filed Counter Affidavits but in a pattern of 1st set of Respondents and a 2nd set of Respondents, and out of time by leave of Court extending time to so file.
The parties written addressees; were filed and in respect of the Respondents, by leave extending time to so file.
At the hearing, the Applicants adopted their Written Address dated and filed on 28/3/18 which was settled by Lekan Alabi, Esq. In his address, the Applicant’s Learned Counsel raised two (2) issues whether this Court has the jurisdiction to entertain this motion and secondly whether it is in the interest of justice to entertain the said application.
It is submitted that the Applicant who has been shown by the Affidavit evidence to be the real owners of the land that was fraudulently obtained by the Judgment complained of in favour of the 7th and 8th Respondents and who wrongly had execution and possession levied against their said property ? house and land and with prosecutions are interested parties, who should be granted extension of time to seek leave to appeal and leave to appeal. Relies on Orders 6 Rules 2, 9 Rules (1) and (2) and Order 4 Rule 4 of the Court of Appeal Rules 2016; Blacks’ Law Dictionary, 9th Edition page 1232 defining ‘a party interested as a person who has a recognizable stake in a matter’ also relied upon.
The learned Counsel submitted that the prayers in a preliminary objection raised in an originating summons in an appeal are clearly different from the reliefs sought in this application.
That the application cannot be incompetent and outside the jurisdiction of the Court to hear. It was also argued that even if the application had been dismissed for want of diligent prosecution, it could in any case be refiled, since it was not determined on its merit upon the aforesaid premise, That the Applicants are persons interested in the land granted to the 7th Respondents Osunlepo family by the Judgment of the lower Court in Suit No. HOS/24/2011 and upon Judgment delivered against third party and not including the Applicants’ family. Learned Counsel opined that it is necessary to be granted leave to appeal so as to protect their interest in the land. A galaxy of cases including Achuzia V. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; NACB Limited V. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Registered Trustees National Association of Community Health Practitioners of Nigeria V. Medical and Health Workers Union of Nigeria (2009) All FWLR (Pt. 412) 1013 at 1053; Edoho V. Akwa Ibom (1996) 1 NWLR (Pt. 425) -488) at 503; Peenok Investments Ltd V. Hotel Presidential Ltd (1982) NSCC Vol. 13 477 at 487 were relied upon.
That this Court has the jurisdiction and should grant the application in the interest of Justice. Relies on Amaechi V. INEC (2008) 10 WRN, for the view that Justice rather than technicality should be pursued.
The Respondents relied on their joint counter Affidavit filed on 29/9/16 pursuant to their motion of same date.
The 1st Respondents, by their Brief of Argument submitted two issues for determination thus;
1. Whether or not this application is not an abuse of Court process and
2. Whether or not this Court has the jurisdiction to entertain the application.
This set of Respondent contend that the application is an abuse of Court process. Their learned Counsel contended that by their joint Counter-Affidavit and its supporting Exhibits AOS1 – AOS9 relied upon, they had shown that Judgment obtained against the 2nd set of Respondents had been executed by the 1st set in suit HOS/24/2011. That the Applicants knew about the pendency of the suit but chose not to join and went on to institute a different suit HOS/69/2013 and claimed the land in which the Judgment in the lower Court had covered. That appeals have either been dismissed and not pursued further or some of the suits with counter Affidavit against, are yet determined. On the second Issue, it is contended that the scenario created by the pendency of the suits and the dismissal of appeal without any action, during the application herein robs the Court of jurisdiction for the abuse of jurisdiction.
That the Counter Affidavit remaining uncountered, is deemed admitted in law.
That the issues be resolved in favour of the 1st set of Respondents and to dismiss the application.
The 2nd set of Respondents aligned with the Applicant and urged that the application be granted as prayed.
The Applicants have shown that they have an interest in the land in dispute which formed part of a large portion of land which they had sued, subsequently after the 1st Respondent had sued the 2nd set of Respondents. They were not parties to the previous suit that touched on the portion of their land and therefore could seek leave to appeal any decision affecting their land. There is no prescription or acquiescence as to when leave may be sought to appeal.
They did not know of the encroachment and claim affecting their portion of land until during the Judgment enforcement process. All that the Applicant needs is to have leave to appeal and may seek the consolidation of any appeal that there may be from the decision of the trial Court touching on their land in respect of which they had not appealed or been made parties.
They had not acquiesced or slept over what they did not know about then.
The decision in Owena Bank (Nig.) Plc V. Nigerian Stock Exchange Ltd (1997) 8 NWLR (Pt. 515) relied upon by the Learned Counsel for the 2nd set of Respondents in concession and support of the application is apt and applicable. The 1st set of respondents ought to have joined the Applicants, who had interest in portion of the land in dispute.
They cannot by their silence or inaction, confer a benefit to either of the Respondents against the Applicant?s right sought to be asserted. The Applicant had the option of bringing their application at either the High Court or this Court; though procedurally, it is for the application to be filed at the trial (Lower) Court and until refused, and when exceptional circumstances are shown why it shall be brought for the first time at the appellate Court; See Adesayo V. Alhaji Sadiq & Ors (2003) FWLR (Pt. 166)
It is obvious from the affidavit evidence and the different stages of the cases at the lower Court and their state, that the application herein has been rightly brought in this Court; in the special circumstances of some of the suits either having been disposed off and one still pending, an appropriate order by this Court in the appeal may better articulate the linkage of the cases vis a vis the parties’ interest and the subject matter in dispute which is clearly contested and indicated by the 2nd set of respondents to be wrongly entered into by the 1st set of Respondent during execution as it was not the subject of the claim.
Accordingly, the application should succeed, as I cannot fathom any prejudice that would be occasioned to the 1st set of Respondents by the grant of leave to appeal as in the application herein.
The grant or refusal of this type of application is dictated by the Judge’s exercise of discretion, upon a judicial and judicious consideration of the facts, materials placed before the Court and the circumstances of each case. The affidavit evidence alleges fraud and misrepresentation as the basis of the judgment sought to be appealed. In Stanbic IBTC Bank V. LGC Ltd (2017) 18 NWLR (Pt. 1598) 431 the apex Court, per Galinje, JSC stated thus:
‘Now, a grant or refusal of this application is purely within the discretionary power of this Court. The law is settled that the discretion of this Court must be exercised not only judicially but also judiciously on sufficient materials. See Udensi V. Odusote.’
Upon the assertion of the shaky foundation for the Judgment in this matter made but without delving into its merit, the Applicant should be let into appeal so that the spirited fight against the execution of the Judgment and the criminal charges and arraignments and threat to the breach of the peace may be averted. Afterall, stay of execution may be granted on the application of either party or the Court suo motu.
Accordingly, leave is hereby granted to the applicants to seek leave to appeal the final Judgment of the High Court of Justice, Osun State sitting at Osogbo, delivered by Hon. Justice S. O. Falola in Suit No. HOS/69/2013 on 6th day of June, 2014 and as parties interested.
Accordingly:
1. Time is extended till today for the Applicants to apply for leave to appeal.
2. Leave to appeal as parties interested is granted.
3. The Notice of Appeal shall be filed within 15 days from today.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the opportunity of reading in draft, the lead ruling of my learned brother, Mohammed Ambi-Usi Danjuma, JCA, just delivered. I am entirely in agreement with the reasoning and the conclusion that the application be granted.
The applicants by their affidavit have shown that they have an interest in the land in dispute and that they were not parties to the previous matter leading to this application. Therefore, could seek leave to appeal as interested parties. It is only a party who can show that he has an interest in a matter and whose interest has been affected by the decision as the instant case, that can seek leave to appeal as an interested party. An applicant seeking leave of Court to appeal as an interested party must make detailed depositions in his affidavit in support of the application to show his interest in the matter. See WAZIRI V. GUMEL (2012) 9 NWLR (PT. 1304) 185.
The applicants herein in my respective view have demonstrated in their affidavit in support of their application that their interest in the land in dispute have been affected by the judgment of the lower Court. The justice demands that they should be given the opportunity to ventilate their grievances as parties interested.
For the above reasons and the detailed ones given in the lead Ruling, I too grant this application. I abide by the consequential orders made therein.
PATRICIA AJUMA MAHMOUD, J.C.A.: This is an application for leave to the applicants for an order extending time within which they may apply for leave to appeal as interested parties against the final judgment of the High Court of Justice, Oshogbo. Indeed I am dismayed that there is opposition to this type of application. Such opposition to my mind is akin to preventing the applicants from exercising their fundamental right to appeal as entrenched in our constitution. An appeal like a regular litigation is better determined on its merits. Any attempt to shut out a party from ventilating his issues should be resisted not only by this court but every institution charged with administration of justice.
It is for this reason that I am in complete accord with my learned brother MOHAMMED A. DANJUMA, JCA that the judicial and judicious exercise of discretion in this matter tilts towards allowing than refusing this application. I therefore allow the leave to appeal as prayed and as more particularly granted by my learned brother in this ruling.
Appearances:
Awoyemi Oluwagbenga, Esq.For Appellant(s)
A. O. Sanusi, Esq. for 1st set of RespondentsFor Respondent(s)
